Costello v. Porzelt

• Decision Date: 01 October 1971
• Citation: 282 A.2d 432,116 N.J.Super. 380
• Parties: Dolores COSTELLO, otherwise Dolores Porzelt, Plaintiff, v. Wayne A. PORZELT, Defendant. (Matrimonial)
• Court: New Jersey Superior Court

Page 380

116 N.J.Super. 380

282 A.2d 432

Dolores COSTELLO, otherwise Dolores Porzelt, Plaintiff, v. Wayne A. PORZELT, Defendant.

Superior Court of New Jersey, Chancery Division (Matrimonial).

Decided Oct. 1, 1971.

Isidore Hornstein, Jersey City, for plaintiff (Hornstein & Hornstein, Jersey City, attorneys).

YOUNG, J.C.C. (temporarily assigned).

This is a suit for annulment of a marriage on the grounds that concealment of heroin addiction is a premarital fraud which goes to the essentials of the marital relation. The suit is brought under the general equity jurisdiction of the Superior Court. There does not appear to be case law in New Jersey dispositive of the issues presented.

Defendant Wayne A. Porzelt did not answer or enter an appearance and proofs were taken Ex parte on August 16, 1971. The proofs satisfactorily establish that following a courtship of less than a month, plaintiff Dolores Costello, a 25-year old hitherto unmarried woman, married defendant, age 24, on February 26, 1971. Shortly thereafter plaintiff noticed strange behavior in her husband and discovered objects missing from the apartment, including sterling silverware, an expensive bedspread and an electric can opener. Prolonged absences from the apartment were explained as job-hunting, but upon investigation plaintiff learned that her husband had been at the home of a friend. Upon further investigation she found a hypodermic needle and a package of heroin behind the light in the medicine cabinet in the bathroom.

Upon retiring one night plaintiff observed needle marks on defendant's arms. He admitted his addiction, confessing that he had taken the household articles aforementioned and sold them for drugs. Plaintiff testified that she had no marital relations with her husband after that encounter early in April, her husband departing the apartment on April 11 and not having been heard from since that date. The wife testified that her suggestions that he seek treatment were rebuffed by her husband.

Plaintiff testified that if she had known that her husband was addicted to heroin at the time of the marriage she would not have entered into the union.

Corroboration was provided by plaintiff's mother, who testified to the personal property missing from her daughter's apartment and the nonratification upon discovery of the addiction.

Another witness was Kenneth Calabrese, detective of the Jersey City Police Department assigned to the Narcotics Squad. This witness produced defendant's arrest record, on the basis of which he testified that defendant was a narcotic addict as of the date of his marriage to plaintiff. At the time of the hearing defendant was a fugitive.

There is inherent jurisdiction in a court of equity to annul fraudulent contracts, including a contract of marriage. Lindquist v. Lindquist, 130 N.J.Eq. 11, 20 A.2d 325 (E. & A.1941); T. v. M., 100 N.J.Super. 530, 242 A.2d 670 (Ch.Div.1968). The fraud may consist of an affirmative false representation or the withholding of the truth when it should be disclosed. Gruber v. Gruber, 98 N.J.Eq. 1, 131 A. 101 (Ch.1925); Turney v. Avery, 92 N.J.Eq. 473, 113 A. 710 (Ch.1921). Putting it another way, the suppression of truth is equivalent to the expression of falsehood.

New Jersey courts have adhered to the distinction between consummated and unconsummated marriages, granting judicial annulment in the latter when infected by fraud of any kind whatsoever that would render a contract voidable, but demanding that the fraud go to the very essence of the marriage relationship when consummation is established. The leading case is Ysern v. Horter, 91 N.J.Eq. 189, 110 A. 31 (Ch.1920) recognized and applied in Akrep v. Akrep, 1 N.J. 268, 270, 63 A.2d 253 (1949); Brown v. Brown, 34 N.J.Super. 261, 265, 112 A.2d 1 (Ch.Div.1954).

The issues framed by the proofs in the present case are:

1. Does the physical and mental impact of addiction to narcotics (heroin) go to the essentials of the marriage relation?

2. Where addiction to narcotics at the time of the marriage is concealed, and upon disclosure after five weeks of marriage the wife refuses to ratify same, is consummation a bar to annulment?

The decisional law of New Jersey has not defined what is meant by the 'essentials' of the marital relation. In an early case, Carris v. Carris, 24 N.J.Eq. 516 (E. & A.1873), the court held that the wife's concealment of her pregnancy by another man at the time of her marriage was an extraordinary fraud which went to the 'essentials' of the marriage. The court abstained from a delineation of the expression, merely stating (at 524) that 'One of the leading and most important objects of the institution of marriage under our laws is the procreation of children * * *.'

The absence of judicial guidelines was noted by Vice-Chancellor Stevenson in Ysern v. Horter, Supra: 'The Carris Case held, in effect, that the court of chancery had jurisdiction to annul a marriage on the ground of fraud in respect to the 'common law essentials' of the marriage when such decree 'would not be against sound consideration of public policy.'' 91 N.J.Eq. at 198, 110 A. at 34. The vice-chancellor then addressed himself to the nature and quantum of fraud which would justify annulment of a Consummated marriage, stating his conclusions in the following passage:

What is fraud in respect to the 'essentials' of marriage, or, to use the broader term, what is 'sufficient fraud,' I think remains to-day the subject of ascertainment in every case brought before this court in which the complaining spouse alleges that his or her consent to a marriage was induced by the defendant's fraud. (At 198, 110 A. at 35).

When the Carris court was called upon to grant an annulment because the wife had fraudulently concealed her pregnancy, there was no clear precedents which Mr. Justice Bedle could marshal in support of a degree upon such grounds. The court was cognizant of the paucity of authority, but nevertheless ordered the Chancellor, in the exercise of inherent general equity jurisdiction, to annul the marriage on the rationale in the excerpt which follows:

The apparent absence of direct adjudication on the point, may perhaps be accounted for by the meager character of the reports previous to 1809, * * *. At any rate, there it no indication in the text books against it, and if fraud, under any circumstances where the forms of consent have been gone through, is to be allowed as a ground of dissolution, it should, upon principle, be in this case. There ought always to be an indisposition in every court to weaken the force and sacredness of the marriage tie. That consideration should induce great carefulness, but should not deter us from advancing where principle leads us, although before, in our courts, the objective point has not been attained. The fraud in this case was so gross and farreaching, as to avoid the consent, and for that reason the marriage must be declared null and void, Ab initio. * * * (Carris v. Carris, 24 N.J.Eq. at 526)

The principle thus established was that 'consideration should induce great carefulness, but should not deter us from advancing where principle leads us, * * *.' Following that rather vague standard, New Jersey courts have granted annulments, under general equity jurisdiction, when impotence has been concealed, declaring same to constitute a fraud, Steerman v. Snow, 94 N.J.Eq. 9, 118 A. 696 (Ch.1922); suppression of knowledge of venereal disease, Crane v. Crane, 62 N.J.Eq. 21, 49 A. 734 (Ch.1901); suppression of the fact that a spouse was afflicted with hereditary chronic tuberculosis, notwithstanding consummation of the marriage, Davis v. Davis, 90 N.J.Eq. 158, 106 A. 644 (Ch.1919); concealment of a fixed determination not to have children, notwithstanding consummation, Williams v. Witt, 98 N.J.Super. 1, 235 A.2d 902 (App.Div.1967); concealment of pregnancy by another man, notwithstanding consummation, B. v. S., 99 N.J.Super. 429, 240 A.2d 189 (Ch.Div.1968).

The cases confirm the proposition that any physical or mental condition or behavior which strikes against the central purpose of marriage, namely its sexual aspect culminating in procreation, goes to the essence of the marital relation. The law assumes that persons who enter into marriage do not intend to frustrate these important objects of the union, but rather that they intend to bring those objects to normal fruition. Cf. Pisciotta v. Buccino, 22 N.J.Super. 114, 117--118, 91 A.2d 629 (App.Div.1952).

There is an ever-expanding body of medical literature in support of the thesis that addiction to narcotic drugs strikes at the physical aspects of married life. Recently, Judge Consodine concluded that addiction created 'an incapacity to discharge the marital duties within our definition of the statutory ground of extreme cruelty.' De Meo v. De Meo, 110 N.J.Super. 179, 180, 264 A.2d 751 (Ch.Div.1970). In an earlier opinion, Melia v. Melia, 94 N.J.Super. 47, 226 A.2d...